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Steven Alfonso Salcedo v. the State of California

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


March 15, 2013

STEVEN ALFONSO SALCEDO, PETITIONER,
v.
THE STATE OF CALIFORNIA, RESPONDENT.

The opinion of the court was delivered by: Hon. Dale S. Fischer United States District Judge

ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation, and the remaining record, and has made a de novo determination.

Petitioner's Objections generally reiterate the arguments made in the Petition, and lack merit for the reasons set forth in the Report and Recommendation. There is one issue, however, that warrants brief amplification here.

Petitioner contends that, contrary to the information presented in his Petition, he filed a habeas petition on August 15, 2011 in the Los Angeles County Superior Court, which was denied on August 28, 2011. (Obj. at 2.) Presumably, Petitioner seeks to avail himself of the benefits of statutory tolling.

Here, however, the federal limitation period expired on April 4, 2007. (R&R at 1-5.) Thus, Petitioner is not entitled to statutory tolling for the period in which any of his later-filed state habeas petitions were pending. (Obj. at 3-4); see Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (once the relevant limitation period has expired under AEDPA, later-filed state habeas petitions do not toll the limitation period).

Accordingly, IT IS ORDERED THAT:

1. The Report and Recommendation is approved and accepted;

2. Judgment be entered denying the Petition and dismissing this action with prejudice; and

3. The Clerk serve copies of this Order on the parties.

Additionally, for the reasons stated in the Report and Recommendation, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). The Court thus declines to issue a certificate of appealability.

20130315

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